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Published on: July 10, 2012

New York Appellate Court Reverses Trial Court Decision Regarding Inclusory Concurrent Counts

by Stephen Bilkis

W was convicted of four counts of first degree robbery, two counts of robbery in the second degree four counts of grand larceny in the third degree. Mr. W appealed his conviction to the Supreme Court Appellate Division.

The appellate court held that Mr. W’s conviction on the second degree robbery and third degree grand larceny counts should be reversed. The majority argued that under New York law, when a verdict is comprised of inclusory concurrent counts, a guilty verdict on the highest count of the indictment is essentially a dismissal of the lesser included counts. The court held that the evidence demonstrated that Mr. W had committed the robbery with three other individuals who were armed at the time. Based on the facts of the case, the court reasoned that Mr. W could not have committed robbery in the first degree without also committing the other crimes included in the indictment. Under New York law, one of the elements of first degree robbery involves the threat or use of force and/or the display or use of a weapon. Had no weapon been present at the time the crime was committed, Mr. W would likely have been charged with second or third degree robbery or a lesser count of larceny.

Published on: July 9, 2012

Court Reduces Robbery Charge to Larceny Based on Lack of Force Used

by Stephen Bilkis

B was charged with one count of robbery in the third degree. On April 9th, 2010, Mr. B allegedly stole $140 from Nellisha Gregory, who worked for a Syracuse branch Bank of America. According to the indictment issued against him, Mr. B took the money by force. This is important to note since the New York Penal Code defines robbery as the forcible stealing of another person’s property. Had the indictment not claimed that Mr. B used force, he may have only been charged with petty larceny or another minor crime. Had Mr. Brown used a weapon or other dangerous instrument in the commission of the robbery, the charge may have been elevated to robbery in the first degree.

Mr. B’s criminal defense attorney filed a motion with the Onondaga County Court on the grounds that the evidence presented to the Grand Jury was insufficient to support a charge of third degree robbery. The court was charged with determining whether the acts committed by Mr. B satisfied the elements of robbery in the third degree as defined under New York law. For purposes of the Grand Jury proceedings, the standard of proof is prima facie evidence, rather than proof beyond a reasonable doubt.

Published on: July 7, 2012

Defendant Charged with Robbery and Weapons Possession Moves for Huntley Hearing

by Stephen Bilkis

R J was charged with one count of first degree robbery and one count of fourth degree weapon possession. The indictment was based on an incident that occurred on September 22, 1979, in which Mr. J allegedly stole money from a bread delivery man. According to the victim’s statement, Mr. J used a weapon in the commission of the crime.

On November 7, 1979, Mr. J gave separate statements to police and to a Bronx County Assistant District Attorney in which he admitted the robbery but denied the use of either a real or replica gun. Mr. J’s attorney moved for a Huntley hearing and opted for a nonjury trial. The hearing and the nonjury trial were held on March 19, 1980 and March 20, 1980 respectively.

Published on: July 6, 2012

New York Appellate Court Decides if Trial Court Erred in Aquitting Defendant Based on Repugnancy

by Stephen Bilkis

T J was convicted of attempted robbery in the second degree and assault in the second degree stemming from an incident that occurred on June 16th, 1983. In that incident, high school student N T stated that a gym bag had been stolen from her locker. She went looking for the bag and found it in the first floor ladies’ room where Ms. J and two other students were in the process of looking through it. T took the bag and was attempting to leave the bathroom when Ms. J began to assault her. Another young woman became involved and grabbed at a gold chain Ms. T had around her neck. The girl was unsuccessful in taking the chain and left the bathroom.

The jury found Ms. J guilty of the second degree attempted robbery involving the physical assault of another person but not guilty of attempted robbery involving the aid of another person. Although the jury found Ms. J guilty of the attempted robbery and assault, the trial court set aside the jury’s verdict. The court argued that the since the jury acquitted Ms. J on the second count of attempted robbery involving the aid of another person, a guilty verdict for the other attempted robbery count could not be sustained. The court further noted that the victim had testified that someone else other than Ms. J had attempted to steal the chain around her neck. The verdict was set aside on grounds of repugnancy, which is when a jury convicts a defendant of one offense but acquits them of another when both have the same underlying circumstances and elements.

Published on: July 5, 2012

NY Supreme Court Decides if Crime Supports a First Degree Robbery Charge

by Stephen Bilkis

H C was charged with two counts of attempted robbery in the first degree stemming from an incident that occurred on January 20, 1981. Allegedly, he attempted to grab bags from two women standing on a subway platform. Mr. C was unsuccessful in attempting to steal either bag. Additionally, Mr. C was charged one count of first degree robbery and one count of attempted first degree robbery for stealing a bag from another woman who was standing on a subway platform. Mr. C’s criminal defense attorney filed a motion to dismiss these charges based on the arguments that the events that were reported did not satisfy the elements of robbery or attempted robbery. Under New York law, robbery in the first degree and attempted robbery in the first degree require an element of force, threat or use of a dangerous instrument, such as a gun, knife or other weapon. This differs from other crimes involving theft of property, such as larceny or burglary.

The New York County Supreme Court was charged with determining whether the facts of the crime supported a first degree robbery charge. After reviewing the the Grand Jury proceedings, the court held that the evidence presented was sufficient to charge Mr. C with first degree robbery and first degree attempted robbery.

Published on: July 3, 2012

New York Appellate Court Decides if Robbery Charges Should Stand Based on the Evidence Presented

by Stephen Bilkis

R T was charged with three counts of robbery in the first degree and three counts of robbery in the third degree for his alleged participation in an event that occurred on October 9, 1977. Mr. T’s brother George was also charged for his alleged role in the crime.

Early in the morning on the day in question, Nathaniel S, Magdelena H and Mildred L were at a Manhattan bar known as “Location 40”, located at 1624 Amsterdam Avenue. H owned the bar and her sister M worked as a barmaid. S was a patron of the establishment. Shortly before 2:00 in the morning, Harris went outside to take out the garbage. While outside, she noticed two men standing a telephone booth across the street. One man was wearing a green parka while the other wore an orange rain suit. At approximately 2:15 a.m., the man in the green parka, whom Harris recognized as a customer named R T, came into the bar carrying an open can or either beer or soda inside a paper bag. H informed Mr. T that he could not bring the drink in with him. Mr. T then said he wanted to use the phone and proceeded to the rear of the bar. Apparently, he was not successful in completing the call and three witnesses stated that the coin he deposited was returned.

Published on: July 2, 2012

New York Appellate Court Reverses, Claiming Double Jeopardy

by Stephen Bilkis

D was charged with first-degree robbery, a charge that was later dismissed by the trial court based on insufficient evidence. At the close of the trial, Mr. M’s attorney argued that the prosecutor had failed to establish the use or threat of use of a dangerous weapon, which was considered an essential element of the crime. Robbery differs from other crimes involving the deliberate theft of someone’s property, such as larceny, which typically does not involve the use of force.

The trial judge agreed with this argument and instructed the jurors that they could find Mr. M guilty only of robbery in the second or third degree. The jury was unable to reach a verdict and a mistrial was declared.

Published on: July 1, 2012

New York Appellate Court Reverses, Contending Jury Wasn’t Properly Instructed on the Crime of Robbery

by Stephen Bilkis

On July 28, 1971, E was convicted in the Bronx County Supreme Court of two counts of murder and felony possession of a weapon. The murder convictions were based on allegations that Mr. D, acting in concert with another person, shot and killed Dolores S and Wilfredo H during the commission of a robbery. Under New York law, robbery is defined as the taking of another person’s property through the use of threats or force. In cases where a weapon is involved, the charge may be elevated to aggravated robbery. Robbery differs from other property crimes, such as burglary, which generally does not involve the use of force against another person.

Following his conviction, Mr. D’s attorney filed an appeal on his behalf, alleging that the jury was never properly instructed as to the elements of robbery and criminal attempt.

Published on: June 30, 2012

Defendant Successfully Files for Writ of Habeas Corpus

by Stephen Bilkis

Shortly after 11 p.m. on Friday, January 6, 1994, two people forced their way into the South Third Street apartment of the Garcia family. The two individuals threatened Bernardo G as well as his wife and two young daughters. They then forced Mr. G to give them the keys to Diana’s Grocery, of which the as were owners. At some point during the robbery, another person entered the apartment. Additional individuals were involved in the robbery of the grocery store and the involved parties communicated via walkie-talkie throughout the event.

On March 4, 1994, neighborhood resident John V was arrested shortly after stopping at the Garcia’s store, apparently to buy a snack. He alone stood trial for the robbery. The other individuals who were arrested pled guilty to their charges. Mr. V was found guilty of six counts of robbery in the first degree, four counts of robbery in the second degree, five counts of burglary in the first degree and two counts of assault in the second degree. Had the Gs not been home when the crime occurred, the men would likely have been charged with burglary or another lesser crime, such as larceny.

Published on: June 29, 2012

Defendant Files Appeal in NY Appellate Court Based on Improper Jury Instructions

by Stephen Bilkis

On June 15, 1982, Joseph C was convicted of robbery in the first degree, robbery in the second degree and criminal possession of stolen property in the third degree in the Supreme Court of Richmond County, New York. Mr. C’s attorney appealed the conviction to the Supreme Court Appellate Division, Second Department.

Mr. C’s appeal centered on the trial judge’s alleged failure to charge the jury that the firearm used in the crime was not actually loaded and therefore, was not capable of causing serious bodily injury or death to the robbery victim. According to his defense lawyer, the judge should have used this information to charge the jury with an affirmative defense to robbery. Had the crime not involved any weapon at all, Mr. C may have only been charged with larceny or a similar crime involving property theft.